Card Range To Study

124 Cards in this Set

if an issue is procedural, use the FRCP. If it is substantive, use state law.

where did we get the FRCP?

rules enabling act of 1934 gave the court the right to prescribe rules of "practice and procedure" as long as they didn't "modify substantive rigts."

who chooses the venue?

Plaintiff--and they may have a choice of many courts to bring suit.

how should a complaint "be"? any exceptions?

short and plain, except in cases of fraud or mistake

Sierocinski v Du Pont

case: dynamite crimping
Rule: P need not give all the facts in the complaint--it is enough to know the "charge."

how do courts resolve ambiguities in complaints?

in favor of the pleading party: no "failure to state a claim" unless it appears beyond doubt that plaintiff can prove NO set of facts entitling releif.

how many claims can a pleader set forth in one claim? what rule? why?

8e2: 2 or more. this is in case the pleader is genuinely uncertain about which one he is going to pursue.

what is the truth pleading rule?

rule 11--good faith

Murphy v Cuomo

case: pepper spray conspiracy
rule: the complaint must be based on more than mere speculation.

how long to respond to a complaint? what rule?

20 days 12a

what 6 things can the defendant do after getting a complaint?

1. object on grounds not going to the merits.
2. ask for dismissal for failure to state a claim
3. deny allegations
4. affirmative defense
5. object for vague or ambiguous complaint
6. motion to strike prejudicial matter from the complaint

how does the defense present defenses or objections to a complaint? how many forms?

must be in a single motion.

which 3 motions can the defense raise in either pre-answer, answer, or post-answer motions?

1. Subject matter jurisdiction
2. failure to state a claim
3. failure to join a party

a written request for the other party to, under oath, admit or deny certain matters. it speeds things up when they are undisputed or easily proveable.

what is "real evidence"?

photos, documents, computer info, etc.

how do you discover "real evidence"--it's not your stuff?

file a request. no motion necessary.

what is the requirement for getting an order of a physical or mental exam?

good cause that such is in controversy.

what happens when someone doesn't cooperate with discovery?

usually sanctions up to contempt (except for not submitting to a physical or mental exam). however, appelate courts may overturn sanctions if they are too drastic. sanctions should ensure compliance, not punish.

are you bound to answers given during discovery? case?

no. Freed v Erie railway. train was in the yard, no lookout necessary. NOT bound.

are pretrial conferences mandatory? rule?

no 16.

what is decided in a pretrial conference?

what is agreed on?
what is disputed?
further amendments to pleading?
further discovery?
exchange of experts, etc.
trial date

what is a pretrial order?
what does it do?

defines the issues--only those set forth in the order can be litigated at trial.
controls the subsequent course of action.

can a plaintiff be precluded from introducing evidence not disclosed before the trial even if it would result in a directed verdict? case?

yes. Shuber v Kresge

identiseal case

judges may not compel discovery although they may regulate it once it is initiated. rule 16 allows judges to require parties to consider discovery.

what does a magistrate do?

usually handles discovery issues and pretrial conferences, etc.

what does a master do?

a specified task--usually positive fact finding for the court.

what's the difference between a motion for judgment on the pleadings and a motion for summary judgment?

JOP: even if its all true, the pleadings are legally insufficient for her to win.(sufficiency)
SJ: even if its all true, I win as a matter of law. (merit)

what happens if the court grants a motion for judgment on the pleadings

usually allows the party to amend the pleadings

if there is a pretrial motion to terminate litigation that goes beyond the pleadings, what motion must it be?

summary judgment.

how are pretrial facts presented?

affidavits, tetimony, etc.

what is the purpose of a provisional remedy

a temporary fix because trials are long and people can hide money or continue to hurt people.

what is attachment?

a provisional remedy that seizes and holds property pending the outcome of a suit

what is a preliminary injunction?

a provisional remedy like a restraining order that enjoins a party to do or refrain from doing a particular act (a temporary restraining order may be granted w/o a hearing)

how do you decide if a preliminary injunction should be applied?

if the plaintiff is very likely going to win, there is little harm in allowing a remedy now.

what are he appelate standards of review for:
facts?
legal conclusions
provisional remedies?